State v. Leavitt
| Decision Date | 14 May 2013 |
| Docket Number | No. 2011–452.,2011–452. |
| Citation | 165 N.H. 32,66 A.3d 1218 |
| Parties | The STATE of New Hampshire v. Todd LEAVITT. |
| Court | New Hampshire Supreme Court |
Michael A. Delaney, attorney general (Sarah T. Blodgett, assistant attorney general, on the brief and orally), for the State.
Brianna M. Sinon, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Todd Leavitt, appeals his convictions for two counts of simple assault on a police officer, see RSA 631:2–a (2007); RSA 651:6, I(g) (Supp.2012), following a jury trial in Superior Court (Vaughan, J.).We affirm.
The jury could have found the following facts. Early on the morning of September 4, 2010, the defendant called 9–1–1 and told the dispatcher that he was suicidal and needed an ambulance. Because the defendant said he was uninjured, however, the dispatcher sent the police to his residence. The defendant became agitated when the police arrived instead of an ambulance,
"screaming and shouting" and asserting that he did not want them to be there. The police offered to drive him to the hospital, but he refused, and he began walking in the direction of the hospital. The police then decided to take him into protective custody, and, in the ensuing struggle, he kicked Officer Nicholas Alden in the leg. He again kicked Officer Alden after they arrived at the hospital.
The defendant was indicted on two counts of simple assault. The charging documents were worded identically in every respect except as to the "Charge ID" number and the designation as either "Count 1" or "Count 2." The defendant moved to dismiss, arguing that the jury could not "differentiate what evidence goes to which [indictment]," in violation of double jeopardy principles. The trial court denied his motion and, after a trial, a jury returned guilty verdicts on both indictments.
On appeal, the defendant argues that the trial court erred in denying his motion to dismiss one of the two simple assault charges. We disagree. At the outset, we note that the defendant does not contend, for double jeopardy purposes, that his conduct gives rise to only one chargeable offense. Nor could he, for, as noted above, the State produced evidence at trial demonstrating that he kicked Officer Alden once during the initial struggle near his home and again at the hospital. See Bins v. United States, 331 F.2d 390, 393 (5th Cir.1964) (). Nor does he contend that the State produced insufficient evidence to convict him of two simple assault charges. Rather, he rests his argument on the fact that the indictments are identical in every particular except as to the number identifying each charge. He contends that, "[b]ecause the indictments [are] identical, ... there [is] no assurance that the jury relied on distinct acts in returning two convictions," and that the indictments are "duplicative as charged."
We review questions of constitutional law de novo. State v. Gingras, 162 N.H. 633, 636, 34 A.3d 659 (2011). Because the defendant rests his double jeopardy argument on federal grounds only, we restrict our analysis accordingly. See State v. Lamarche, 157 N.H. 337, 340, 950 A.2d 172 (2008).
We agree with the State that the defendant's convictions do not violate the Federal Double Jeopardy Clause. The defendant highlights the indictments' identical language to argue that only one crime was charged, or that the jury could have believed as much. "[T]here is no way," he argues, "to determine whether the jury convicted [the defendant] for two separate acts." To the contrary, the trial court instructed the jury that "[e]ach of the indictments against the [d]efendant constitutes a separate offense," and we presume that the jury followed that instruction. State v. Smith, 149 N.H. 693, 697, 827 A.2d 985 (2003). The defendant does not contend that the indictments posed due process concerns such as insufficient notice. More importantly, the State adduced evidence at trial that, in fact, demonstrated that the defendant committed two separate assaults. Officer Alden testified as to these assaults, and the prosecutor discussed this evidence thoroughly during her opening statement and closing argument. Moreover, during its deliberations, the jury had in its possession one copy of each indictment, and, after the trial court instructed the jury that each indictment...
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...facts to prove that the defendant committed three separate assaults, there was no double jeopardy violation. See State v. Leavitt, 165 N.H. 32, 33-34, 66 A.3d 1218 (2013). The evidence presented at trial indicated that the defendant made unprivileged physical contact with Moriarty on three ......
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